If you have been arrested for OUI in Massachusetts, and a police officer has requested that you take a breathalyzer test, blood test, or chemical breath test, you have the right to refuse to take the test and the refusal cannot be used as evidence against you at a DUI trial. The jury hearing your drunk driving case will not be allowed to hear that you refused to submit to the breathalyzer. However, under Melanie’s Law, refusing the breathalyzer will result in a suspension of your driver’s license or right to operate for a period of at least 6 months, up to lifetime, depending on the number of prior DUI offenses.
For a breathalyzer refusal or chemical test refusal (CTR) suspension to be valid, you must be notified of the consequences of refusing the breath test and the police must inform you of the following rights.
MASSACHUSETTS BREATHALZYER REFUSAL RIGHTS
1. I am requesting that you submit to a chemical test to determine your blood alcohol concentration.
2. If you refuse this test, your license or right to operate in Massachusetts shall be suspended for at least a period of 180 days, but not more than 18 months for such refusal. The suspension if you take the test and fail it is 30 days. Drivers under age 21 will face an additional suspension pursuant to General Laws Chapter 90, Section 24P of 180 days to 1 year.
3. If your blood alcohol level is .08 or above, you are in violation of Massachusetts law and may face criminal penalties. Drivers under age 21 have the same legal limit for court purposes, but will face administrative penalties for any blood alcohol concentration of .02 or above.
4. If you decide to take the test and complete it, you will have the right to a comparison blood test within a reasonable period of time at your own expense. The results of this comparison test can be used to restore your license or right to operate at a court hearing within 10 days.
5. It is not your option which type of chemical test to take. Refusal or failure to consent to take the test that I am requesting is a violation of the Implied Consent Law, and will result in your right to operate a motor vehicle being suspended as I have stated to you. Refusing this test, but requesting some other form of test is a refusal under the law.
NOTICE TO PERSONS OPERATING A VEHICLE REQUIRING A COMMERCIAL DRIVER’S LICENSE
In addition to the penalties already mentioned in Sec. 24, General Laws Ch. 90F, Sec. 11 provides that a person operating a motor vehicle for which a commercial driver’s license is required, who fails to submit to a required test of blood, breath, or urine after a law enforcement officer has probable cause to believe that the person was operating any such vehicle while having alcohol in his or her system, shall be placed out-of-service for twenty-four (24) hours, and shall also be disqualified from driving a commercial motor vehicle for a period of one (1) year. If the vehicle was transporting a hazardous material required to be placarded, the CDL disqualification shall be for three (3) years. If the person has on a previous occasion been convicted of a disqualifying offense as described in federal CDL regulations, the CDL disqualification shall be for life.
Some people who are arrested for DUI refuse to sign the form indicating that they have been afforded these rights. That is not fatal to the prosecution’s case and the Registry of Motor Vehicles has repeatedly upheld refusal suspensions where the driver has not signed the refusal form.
Depending on the facts and circumstances of the particular DUI case, it is possible to appeal breathalyzer refusal suspensions and win. Breathalzyer refusals must be adequately documented and the refusal process must be conducted in accordance with Mass. DUI Law and regulations. Improperly obtained breath test refusals can be completely reversed if the refusal appeal process is carefully followed.
Refusal suspensions must first be appealed to the Registry of Motor Vehicles and then to the District Court having jurisdiction over the location where the DUI arrest occurred. In some cases, it is possible to appeal certain aspects of a chemical test refusal to the Division of Insurance Board of Appeal.